Many Canadian employees assume they have no rights during a probationary period. This is largely a myth. While probationary periods do affect some dismissal rights, they do not strip you of your entitlements under employment standards legislation, and most provincial laws set strict limits on how long a probationary period can last. Reading the probation terms carefully before you sign can prevent significant surprises.
What is a Probation Period?
A probationary period is a defined initial period during which an employer assesses whether a new employee is suitable for the role. Under most provincial employment standards acts, employees dismissed during probation are not entitled to statutory notice (in Ontario, the probation exemption applies to the first 3 months of employment). However, employees on probation are still protected against discriminatory dismissal and retain other ESA rights. Contractual probation periods exceeding the statutory exemption period do not extend the notice exemption.
Red flags to watch for
Ontario's ESA probation exemption from notice only applies to the first 3 months. A 6-month contractual probation period does not extend the ESA notice exemption — employees dismissed after 3 months are still entitled to notice.
Even during probation, dismissal must not be discriminatory (contrary to human rights legislation). Any dismissal that appears linked to a protected characteristic can be challenged.
Some contracts allow unilateral extension of the probation period. Courts have found that extending probation without agreement may amount to a constructive dismissal.
If the contract implies probation will be assessed against specific objectives, the employer should clearly define them. Vague performance standards are difficult to defend if challenged.
Withholding benefits during probation is legal but should be clearly documented. Vague language about when benefits begin is a common source of disputes.
Your legal rights
Canadian employees on probation retain their human rights protections under provincial and federal human rights legislation. Dismissal during probation that is connected to a protected characteristic (race, sex, disability, etc.) can be challenged before the relevant Human Rights Tribunal. In Ontario, dismissed employees have access to the ESA complaint process for any unpaid wages or entitlements during probation, regardless of the probation clause. In federally regulated industries, the Canada Labour Code applies instead of provincial legislation.
Questions to ask before you sign
- 1How long is the probation period and does it comply with the provincial ESA?
- 2How will my performance be assessed during probation and against what criteria?
- 3When do my employment benefits begin?
- 4Can the probation period be extended, and under what circumstances?
- 5What process applies if I am dismissed during probation?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.